Tort - Liability For Animals

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Liability for Animals - Introduction

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Persons in control of animals may be liable under a number of torts, such as nuisance, negligence and trespass, where the animal in question causes damage.

In addition, there are separate common law principles dealing with responsibility for damage caused by animals.

These principles developed prior to modern notions such as negligence, which now dominate tort law.

Despite their being anachronistic, they have survived, with only minor legislative changes.

In 1977, a LRC Working Paper called for a modern unified strict liability tort to be enacted – similar to R v F – but this has not yet occurred.

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Cattle Trespass

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Per LRC, “cattle” refers to all farm animals (including fowl), but not dogs, cats or wild animals. In Brady v. Warren (1900), domestic deer were treated as cattle, but rabbits were not.

Cattle straying from Def’s land onto neighbouring land: strict liability for any damage caused.

Cattle straying from highway onto neighbouring land: negligence by the person in control must be shown.

Cattle straying from Def’s land onto highway:

i. At common law, there was immunity from liability in such cases.

ii. s. 2 Animals Act 1985: duty to take reasonable care to avoid damage being caused by an animal straying onto a public road; in O’Shea v. Tilman (1996) the SC held that the onus is on the Def to show he exercised reasonable care.

The damage requirement in this tort was initially presumed to refer only to damage to property, but Wormald v. Cole (1954) suggests liability can extend to personal injury.

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Brady v. Warren (1900)

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Domestic deer were treated as cattle, but rabbits were not.

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O’Shea v. Tilman (1996)

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The SC held that the onus is on the Def to show he exercised reasonable care when cattle strayed from public road, in terms of s. 2 Animals Act 1985.

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Under Dalton v. O’Sullivan (1947)

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The proper Def is not the owner of the animals, but the person in control of them.

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Scienter

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The scienter doctrine applies strict liability to persons who are knowingly in possession of dangerous animals.

The doctrine is broader than the tort of cattle trespass in two ways: (a) it applies to any animal, (b) it does not require the animal to have strayed from A to B.

The law divides animals into naturally dangerous animals (ferae naturae – usually wild animals) and naturally harmless ones (mansuetae naturae – usually domestic animals). The categorisation of an animal is not always easily achieved.

NB: it is made for a whole species, and not for individual animals.

Under the doctrine, the Def’s knowledge of dangerousness is presumed for ferae naturae.

In the case of mansuetae naturae, the Pl must establish that the Def had knowledge of a tendency or propensity toward the type of mischief complained of.

Note the following principles:

i. the propensity can be shown by behaviour other than the actual behaviour itself: the angry snarling of a dog may show a propensity to bite, even if the dog has not yet bitten;

ii. knowledge of the danger on the part of family members or servants will be imputed to the Def;

iii. the tendency/propensity must be dangerous – friskiness is insufficient.

Acts of third parties are not available as a defence in scienter; the position in terms of acts of god is uncertain;

LRC argues for the same defences to apply as do for R v F, given the similarity of the torts.

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ferae naturae – usually wild animals

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Under the doctrine, the Def’s knowledge of dangerousness is presumed for ferae naturae; in Behrens v. Bertram Mills Circus (1957), it was held that this presumption of dangerousness in relation to ferae naturae was not rebuttable.

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mansuetae naturae – usually domestic animals

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In the case of mansuetae naturae, the Pl must establish that the Def had knowledge of a tendency or propensity toward the type of mischief complained of. Glanville v. Sutton (1928): proof that a horse tended to bit other horses was insufficient to show a mischievous tendency when a person was bitten.

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Glanville v. Sutton (1928)

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Proof that a horse tended to bite other horses was insufficient to show a mischievous tendency when a person was bitten.

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Behrens v. Bertram Mills Circus (1957)

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It was held that this presumption of dangerousness in relation to ferae naturae was not rebuttable.

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Statutory Liability for Dogs

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Control of Dogs Acts 1986 and 1992 govern the control of dogs.

Primarily administrative matters, e.g. licensing and enforcement; criminal liability for breach.

Liability is independent of any knowledge of dangerousness.

The following exceptions apply to the strict liability tort

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Section 21 of the Control of Dogs Act, 1986

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s. 21 CoDA 1986, however, imposes civil liability on dog owners, the definition of whom in s. 1 includes occupiers of land where a dog is kept or permitted to remain, unless that person can prove he is not the owner.

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Section 21 (1) of the Control of Dogs Act, 1986 - strict liability for attacks

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s. 21(1) imposes strict liability

“for damage caused in an attack on any person by the dog and for injury done by it to livestock”.

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Section 21 (3) of the Control of Dogs Act, 1986 - liability for attacks on trespassers

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Liability for injury caused by a dog to a trespasser requires proof of negligence under s. 21(3);

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Section 21 (2) of the Control of Dogs Act, 1986 - damage to straying livestock

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ii. Damage to livestock which stray onto land where the dog is lawfully present is actionable only if the Def caused the dog to attack, under s. 21(2).